261 N.C. App. 638
N.C. Ct. App.2018Background
- DSS obtained non-secure custody of Ian and Quentin in June 2014 after reports Ian tested positive for cocaine and mother admitted drug use and unsafe home conditions; Respondent-Father’s whereabouts were initially unknown.
- The trial court adjudicated the children neglected and dependent, placed custody with DSS, and ordered services and conditions (parenting classes, stable housing/employment, no new charges) for Respondent-Father.
- Reunification efforts with Respondent-Father ceased after limited contact and his incarceration; reunification with mother was later ceased and adoption became the primary permanency plan.
- DSS filed petitions (Dec. 2016) to terminate parental rights (to Quentin and, as amended, to Ian), alleging neglect, failure to correct conditions, failure to pay cost of care, dependency, and willful abandonment.
- At the termination hearing Respondent-Father testified but had spotty visitation, unpaid child support arrears, new criminal charges, and failed to verify completion of ordered services; the trial court found multiple statutory grounds and that termination was in the children’s best interests.
- Appellate counsel filed a Rule 3.1(d) no-merit brief; Respondent-Father later filed an untimely pro se brief asking for a stay/abeyance and generally asserting flawed factfinding. The Court of Appeals dismissed the appeal as untimely and inadequately argued.
Issues
| Issue | Plaintiff's Argument (DSS) | Defendant's Argument (Respondent-Father) | Held |
|---|---|---|---|
| Whether the appeal presented issues preserved and properly argued under Rule 3.1(d) and appellate rules | Counsel filed a no-merit brief and requested the court’s independent review; no-merit procedure complied with Rule 3.1(d) | Respondent-Father filed a late pro se brief asserting general factual error and requested a 120‑day abeyance | Court held Respondent-Father’s pro se brief was untimely and unsupported; dismissed the appeal for failure to preserve/argue issues properly |
| Whether statutory grounds for termination were supported (neglect and others) | DSS argued record supported multiple statutory grounds for termination | Respondent-Father disputed the trial court’s fact findings but provided no developed argument or citations | Court (and counsel) conceded at least one ground—neglect—was supported; because one ground existed, it affirmed termination on that basis (no error) |
| Whether termination was in the children’s best interests | DSS and trial court found termination served juveniles’ safety and permanency | Respondent-Father urged factual challenges but did not present substantiated counter‑evidence | Court agreed trial court did not abuse discretion in concluding termination was in children’s best interests |
| Whether the Court should hold the appeal in abeyance pending Respondent-Father’s criminal proceedings | N/A (no request from DSS) | Requested abeyance to obtain records and await criminal trial | Court denied the request as unsupported and untimely |
Key Cases Cited
- In re B.S.D.S., 163 N.C. App. 540, 594 S.E.2d 89 (N.C. Ct. App. 2004) (if at least one statutory ground for termination is established, appellate court need not address additional grounds)
- In re C.D.A.W., 175 N.C. App. 680, 625 S.E.2d 139 (N.C. Ct. App. 2006) (issues on appeal abandoned when presented without argument or citation)
- In re L.V., 814 S.E.2d 928 (N.C. Ct. App. 2018) (procedural rules govern preservation and consideration of issues on appeal)
- In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (N.C. 1989) (panels of the Court of Appeals are bound by prior panels’ decisions unless overruled by a higher court)